Bombay High Court
Taranjitsingh I. Bagga vs Maharashtra State Road Transport ... on 11 April, 2008
Equivalent citations: 2008(110)BOM.L.R.1245, 2008(3)MHLJ743
Author: R.C. Chavan
Bench: K.J. Rohee, R.C. Chavan
JUDGMENT R.C. Chavan, J.
Page 1248
1. This appeal by employee takes exception to judgment by the learned single Judge allowing respondent-employer's Writ Petition No. 4733 of 2005, whereby the learned Judge quashed and set aside orders passed by the Courts below granting to the appellant full back wages.
2. The appellant is serving as a conductor with the respondent Corporation. On 20th September, 1992 the bus, on which the appellant was on duty as conductor, was checked and on the basis of observations made by the Checking Party an enquiry was started against the appellant. According to the appellant, the enquiry was not conducted properly and the appellant was dismissed from service by an order dated 8th December, 1994. The appellant filed complaint before the Judge, Labour Court, Amravati under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. The learned Judge, Labour Court held that the appellant was not given opportunity of cross-examining employer's witnesses and, therefore, enquiry was not proper and was not conducted according to the principles of natural justice. He, therefore, allowed complaint, and declared that the respondents had engaged in unfair labour practices and directed reinstatement of the appellant with continuity of service and full back wages. Respondent's revision was rejected by the learned Member, Industrial Court, who too concurred with the finding that the appellant had not been given opportunity of cross-examining respondent's witnesses.
3. While deciding employer's petition challenging these judgments, the learned single Judge held that in view of the decision of the Apex Court in J.K. Synthetics Ltd. v. K.P. Agrawal reported at and Kendriya Vidyalaya Sangathan and Anr. v. S.C. Sharma reported at in the absence of pleadings and proof for grant of back wages, the Courts below could not have granted back wages. He, therefore, allowed the petition to the extent the orders directed payment of back wages. Aggrieved thereby, the employee has preferred this appeal, which was directed to be disposed of at the stage of admission itself by consent of parties.
3. We have heard Shri N.R.Saboo, learned Counsel for the appellant-employee and Shri S.C.Mehadia, learned Counsel for the respondent-employer.
Page 1249
4. The learned Counsel for the appellant submitted that the Apex Court could not be said to have held that an employee is not entitled to back wages upon setting aside his dismissal unless he has pleaded and proved that he is entitled to such back wages by leading oral evidence. He submitted that J.K. Synthetics v. K.P. Agrawal, on which the learned Counsel for the respondent placed reliance, cannot at all be interpreted to lay down the law that upon ordering reinstatement of an employee, whose dismissal was found to be illegal, back wages could not have been ordered to be paid. For this purpose, he drew our attention to observations in paragraphs 19 and 20 of the judgment to the following effect.:
19. But the cases referred to above, where back wages were awarded, related to termination/ retrenchment which were held to be illegal and invalid for non-compliance with statutory requirement or related to cases where the Court found that the termination was motivated or amounted to victimisation. The decisions relating to back wages payable on illegal retrenchment or termination may have no application to the case like the present one, where the termination (dismissal or removal or compulsory retirement) is by way of punishment for misconduct in a departmental inquiry, and the court confirms the finding regarding misconduct, but only interferes with the punishment being of the view that it is excessive, and awards a lesser punishment, resulting in the reinstatement of employee. Where the power under Article 226 or Section 11-A of the Industrial Disputes Act (or any other similar provision) is exercised by any court to interfere with the punishment on the ground that it is excessive and the employee deserves a lesser punishment, and a consequential direction is issued for reinstatement, the court is not holding that the employer was in the wrong or that the dismissal was illegal and invalid. The court is merely exercising its discretion to award a lesser punishment. Till such power is exercised, the dismissal is valid and in force. When the punishment is reduced by a court as being excessive, there can be either a direction for reinstatement or a direction for a nominal lump sum compensation. And if reinstatement is directed, it can be effective either prospectively from the date of such substitution of punishment (in which event, there is no continuity of service) or retrospectively, from the date on which the penalty of termination was imposed (in which event, there can be a consequential direction relating to continuity of service). What requires to be noted in cases where finding of misconduct is affirmed and only the punishment is interfered with (as contrasted from cases where termination is held to be illegal or void) is that there is no automatic reinstatement; and if reinstatement is directed, it is not automatically with retrospective effect from the date of termination. Therefore, where reinstatement is a consequence of imposition of a lesser punishment, neither back wages not continuity of service nor consequential benefits, follow as a natural or necessary consequence of such reinstatement. In cases where the misconduct is held to be proved, and reinstatement is itself a consequential benefit arising from imposition of a lesser punishment, award of back wages for the period when the employee has not worked, may amount to rewarding the Page 1250 delinquent employee and punishing the employer for taking action for the misconduct committed by the employee. That should be avoided. Similarly, in such cases, even where continuity of service is directed, it should only be for purpose of pensionary/ retirement benefits, and not for other benefits like increments, promotions, etc.
20. But there are two exceptions. The first is where the court sets aside the termination as a consequence of employee being exonerated or being found not guilty of the misconduct. Second is where the court reaches a conclusion that the inquiry was held in respect of a frivolous issue or petty misconduct, as a camouflage to get rid of the employee or victimise him, and the disproportionately excessive punishment is a result of such scheme or intention. In such cases, the principles relating to back wages, etc. will be the same as those applied in the cases of an illegal termination.
5. In this judgment the Supreme Court had also taken into consideration its earlier judgments in U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey and Allahabad Jal Sansthan v. Daya Shankar Rai and Anr. . It is, therefore, not necessary to discuss those judgments at length. Even in U.P. S.R.T.C. v. Mitthu Singh reported at on which learned Advocate Shri Mehadia for the employer placed reliance, the learned Judge, Labour Court had not found that the services of the employee were terminated illegally. He had held that there was no justification for giving punishment of termination of the services to the driver, and it would be sufficient to give him warning for future. The question of grant of back wages came for scrutiny in this factual context, which can not be ignored.
6. The learned Counsel for the appellant placed for our perusal judgments of the Supreme Court in H.S. Chandra Shekara Chari v. Divisional Controller, KSRTC reported at (1999) 4 SCC 611, P.G.I. Of M.S.E & Research Chandigarh v. R.Kumar reported at 2001(88) FLR 6881, Chhotelal Badriprasad Yadav v. Union of India and Anr. reported at 2006 III CLR 946 and Progressive Education Society v. Nitin reported at . We have gone through these judgments but do not find it necessary to discuss them at length, in view of the clear and unambiguous expression of law on this subject by the Apex Court in paragraphs 19 and 20 of the latest judgment in J.K. Synthetics v. K.P. Agrawal, quoted above. It is unfortunate Page 1251 that the conclusion drawn by the learned Single Judge on the basis of this the very judgments are diametrically opposite to what we find. It may be seen that the Apex Court has categorically stated that the cases where retrenchment, termination etc. was held to be illegal have to be distinguished from those in which the Court confirms findings of misconduct but only interferes with the punishment. In paragraph 20 the Apex Court has categorically carved out exception of cases where employee was not found guilty of misconduct or is exonerated.
7. In this case, both, the learned Judge of the Labour Court as well as Member, Industrial Court had categorically held that the enquiry itself was not proper and was not in accordance with the principles of natural justice. It is seen from the judgment of the learned Member, Industrial Court that while the Enquiry Officer had specifically allowed the employee to cross-examine the employer's witness examined on 23.09.1994, on the next date i.e. on 24.10.1994 the Enquiry Officer held that since one of the witnesses had retired it was not necessary to cross-examine him and since the other witness was examined only on the question of way-bill of the employee, his cross-examination was not necessary. The Enquiry Officer had thus, virtually shut out employee's defence. In these circumstances, the Courts below held that dismissal of the appellant was thoroughly untenable. Therefore, this case would fall under the exceptions referred to in paragraph 20 of the J.K. Synthetic Ltd. In view of this, in our view, it was not necessary for the learned Judge to interfere with the findings of both the Courts below that the appellant was entitled to full back wages upon his reinstatement.
8. Learned Advocate Shri Mehadia for the respondent submitted that the law has undergone change and unless the employee pleads and proves that he was not gainfully employed, he would not be entitled to back wages automatically upon reinstatement. As the Apex Court has observed time and again, the question of entitlement to back wages would depend on the facts and circumstances of each case, and there can be no straitjacket formula. The Court cannot be oblivious to the fact that an employee, whose services were terminated wrongly, has not only to fight for his survival by getting such odd jobs as he can, but has also to fight a battle for getting himself reinstated in service. The Courts cannot be oblivious to the fact that such legal adventure is costly and would eat up a large chunk of whatever meagre income that the employee may be able to make by getting any odd job. At the same time, no Court can be oblivious to the grim reality of unemployment pervading all stratas of the society. Therefore, we would not be in a position to conclude that the moment a person is sacked he can find alternate means of his wherewithal. In this situation, it would be unjust to insist upon a technical requirement of pleading and proof of absence of gainful employment by an employee who is wrongfully dismissed.
9. The contention of learned Advocate Shri Mehadia for the respondent . employer that the appellant did not have a clean record in the past is irrelevant in the context of the fact that his dismissal itself is found to be illegal.
10. In this view of the matter, we allow the appeal and quash and set aside order passed by the learned Single Judge.